Citation Nr: 0639880
Decision Date: 12/27/06 Archive Date: 01/05/07
DOCKET NO. 04-34 120 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Phoenix,
Arizona
THE ISSUE
Entitlement to service connection for residuals of a right
third toe injury.
ATTORNEY FOR THE BOARD
K. R. Fletcher, Counsel
INTRODUCTION
The appellant is a veteran who served on active duty from
June 1978 until his retirement in June 1998. This matter is
before the Board of Veterans' Appeals (Board) on appeal from
a February 2003 rating decision by the Phoenix, Arizona
Department of Veterans Affairs (VA) Regional Office (RO).
FINDING OF FACT
The veteran is not shown to have any residual disability from
a right third toe injury.
CONCLUSION OF LAW
Service connection for residuals of a right third toe injury
is not warranted. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002
& Supp. 2005); 38 C.F.R. § 3.303 (2006).
REASONS AND BASES FOR FINDING AND CONCLUSION
Veterans Claims Assistance Act
The Veterans Claims Assistance Act of 2000 (VCAA), in part,
describes VA's duty to notify and assist claimants in
substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100,
5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a),
3.159, 3.326(a).
Upon receipt of a complete or substantially complete
application for benefits, VA is required to notify the
claimant and his or her representative, if any, of any
information, and any medical or lay evidence, that is
necessary to substantiate the claim. 38 U.S.C.A. § 5103(a);
38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App.
183 (2002). Proper VCAA notice must inform the claimant of
any information and evidence not of record (1) that is
necessary to substantiate the claim; (2) that VA will seek to
provide; (3) that the claimant is expected to provide; and
(4) must ask the claimant to provide any evidence in her or
his possession that pertains to the claim in accordance with
38 C.F.R. § 3.159(b)(1). VCAA notice should be provided to a
claimant before the initial unfavorable agency of original
jurisdiction decision on a claim. Pelegrini v. Principi, 18
Vet. App. 112 (2004).
The veteran was provided VCAA notice by letter dated in
September 2004. Although he was provided VCAA notice
subsequent to the February 2003 rating decision appealed, he
is not prejudiced by such notice timing defect. He was
notified of VA's duties to notify and assist in the
development of the claim. The September 2004 letter
explained the evidence necessary to substantiate his claim,
the evidence VA was responsible for providing, and the
evidence he was responsible for providing. The letter also
specifically informed the veteran to submit any pertinent
evidence in his possession. See page 2 of the September 2004
letter. Furthermore, in a March 2006 letter, he was given
notice regarding ratings and effective dates of awards, see
Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The
veteran was given ample time to respond to these letters or
supplement the record. The claim was readjudicated after all
essential notice was given. See June 2006 supplemental
statement of the case.
The veteran's service medical records have been secured. The
RO arranged for a VA examination. The veteran has not
identified any pertinent evidence that remains outstanding.
Thus, VA's duty to assist is also met. Accordingly, the
Board will address the merits of the claim.
Service Connection
Service connection may be granted for disability resulting
from personal injury suffered or disease contracted during
active military service, or for aggravation of a pre-existing
injury suffered, or disease contracted, during such service.
38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. §§ 3.303(a), 3.304.
Service connection also may be granted for any disease
diagnosed after discharge, when all the evidence, including
that pertinent to service, establishes that the disease was
incurred in service. 38 C.F.R. § 3.303(d).
Direct service connection may not be granted without medical
evidence of a current disability, medical or, in certain
circumstances, lay evidence of in-service incurrence or
aggravation of a disease or injury; and competent (medical)
evidence of a nexus between the claimed in-service disease or
injury and the present disease or injury. See Caluza v.
Brown, 7 Vet. App. 498, 506 (1995) aff'd, 78 F.3d 604 (Fed.
Cir. 1996) (table).
In the absence of proof of a present disability (and, if so,
of a nexus between that disability and service), there can be
no valid claim for service connection. Gilpin v. West, 155
F.3d 1353 (Fed. Cir. 1998); Brammer v. Derwinski, 3 Vet. App.
223, 225 (1992). This principle has been repeatedly
reaffirmed by the Federal Circuit, which has stated that "a
veteran seeking disability benefits must establish . . . the
existence of a disability [and] a connection between the
veteran's service and the disability." Boyer v. West, 210
F.3d 1351, 1353 (Fed. Cir. 2000).
Except as otherwise provided by law, a claimant has the
responsibility to present and support a claim for benefits
under laws administered by the Secretary. The Secretary
shall consider all information and lay and medical evidence
of record in a case before the Secretary with respect to
benefits under laws administered by the Secretary. When
there is an approximate balance of positive and negative
evidence regarding any issue material to the determination of
a matter, the Secretary shall give the benefit of the doubt
to the claimant. 38 U.S.C.A. § 5107; see also Gilbert v.
Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its
merits, the evidence must preponderate against the claim.
Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing
Gilbert, 1 Vet. App. at 54.
The veteran's service medical records show that he was seen
in August 1900 after jamming his right middle toe.
Specifically, the veteran complained of pain, swelling and
discoloration of the toe after slamming his foot into a box
of books. Upon examination, the veteran complained of
moderate tenderness. Slight edema was noted in the toe.
Range of motion was good without pain. No deformity was
palpable. X-rays were not taken at that time. The
impression was contusion/probable fracture of the right third
toe. The toe was "buddy taped" and the veteran was told to
return the following week if his pain persisted. An October
1997 report of physical examination prior to retirement notes
that examination of the feet was normal.
Post-service medical evidence includes a November 1998 VA
examination report which notes the veteran's complaint of
occasional stiffness in his right third toe. Examination of
the feet revealed no abnormality. The impression included
status post-fracture of the third toe, right foot, with no
residual.
Although the veteran did complain of, and receive treatment
for, a right third toe injury in service, service medical
records do not show that a chronic right third toe disorder
was found. No such disability was noted on his examination
prior to retirement. There is no postservice medical
evidence of right third toe disability. The veteran has not
identified any treatment for such disability; VA examination
in 1998 revealed no current disability. Accordingly, service
connection for residuals of a right third toe injury is not
warranted. See Brammer, supra.
In reaching this conclusion, the Board has considered the
benefit of the doubt doctrine; however, as the preponderance
of the evidence is against the claim, that doctrine does not
apply. See 38 U.S.C.A. § 5107(b).
ORDER
Service connection for residuals of a right third toe injury
is denied.
____________________________________________
George R. Senyk
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs